Abstract
While addiction is not a legal defense in any legal system, the chapter assays whether it should be. The conclusion is largely negative, denying that there should be any general defense but allowing that in certain cases at least a partial defense would be appropriate. The chapter rejects the shibboleths commonly asserted in this area: that no addict can be excused because he or she was responsible for becoming an addict in the first place and that all addicts must be excused because addiction is a brain disease. A more piecemeal, nuanced approach is taken to the issue.
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Notes
- 1.
To my knowledge, addiction is also not a defense in any Western penal code. This is a bit of a surprise in countries such as Portugal, the Netherlands, and Canada, given that the legal systems of each regard addiction as a disease that in its origins and its symptoms are not the fault of the addict. Portugal and the Netherlands have rendered the issue of defense largely moot by decriminalizing use and possession, thus eliminating the need for any defense of addiction for those behaviors that would be crimes elsewhere. Despite Canada’s interpretation of its human rights laws against disability-based discrimination so as to prohibit loss of job or housing because one is an addict (seeStewart v. Elk Valley Coal Corp., 2017-1 SCR 591, 2017 SCC 30), nonetheless addiction remains not a defense to crime in Canada as in the rest of the English-speaking world. (For the state of the law in Australia, see Kennett 2014.)
- 2.
The leading case here is United States v. Moore, 486 F2d 1139 (D.C. Cir. 1963), where the District of Columbia Court of Appeals rejected any addiction-based defense to the charge of possession of a controlled substance. The case is notable for its two dissents by two well-known liberal judges (Bazelon and Wright) arguing vigorously for the existence of a defense in these circumstances. The recent decision of the Supreme Judicial Court of Massachusetts in Commonwealthv. Eldred, 101 N.E. 3d 911 (Mass. 2018), is in line with Moore. The issue in Eldred was whether Ms. Eldred’s parole could be revoked for use of controlled substances to which she was addicted and thus (she claimed) she was compelled to use; the Court held that use of drugs by those addicted to them is not necessarily so compelled (or otherwise not a matter of responsible choice) as to make revocation of parole for such use unfair or impermissible. The Eldred Court was aided in its decision by an amicus brief signed by myself and most of those thanked in this chapter’s final footnote.
- 3.
The sole exemption to this is the recent decision of the Fourth Circuit Court of Appeals in Manning v. Caldwell, case no. 17-1320, decided July 16, 2019.
- 4.
The injunction is to be taken with a grain of salt. Definitions can aid both speaker and audience to secure the reference of words like “addiction,” but such definitions should not themselves be thought to be analytically necessary criteria for the proper use of such terms. See generally Moore (1981, 1985a). It is also and for the same reasons an oversimplification to think that one can entirely separate the definition of “addiction” from the explanation and the evaluation of addiction.
- 5.
The differences between these two senses of “criteria” are explored by me in Moore (1981).
- 6.
Death is a much discussed example of the point being made in the text, in Moore (1985a).
- 7.
Amenability to medical treatment is what I called the “jurisdictional” justification for medical definition, that is, the marking out of a jurisdiction for professional treatment by labeling conditions, “a disease.” Lawyers do the same thing when they mark out a condition as a “legal problem,” that is, a problem with which only law-trained professionals can deal. See Moore (1978).
- 8.
As a consultant to Spitzer’s APA Committee on Nomenclature and Statistics, I urged a narrowing of this overall definition of medical disorders (Moore 1978). Some of my suggested narrowings found their way into the overall definitions of medical disorders to be found in the third, fourth, and fifth editions of the Diagnostic and Statistical Manual. See Stein (2010).
- 9.
For an update of the same view, see Volkow et al. (2016).
- 10.
- 11.
- 12.
At least my brand of compatibilism needs to do so. The so-called source compatibilists follow Harry Frankfurt (Frankfurt 1969) in denying that an actor need satisfy the Principle of Alternative Possibilities (PAP) (in any sense) in order to be responsible and thus do not require an analysis of the meaning of PAP. See Moore (2014, 2016b), for a brief explication of source compatibilism.
- 13.
In Moore (2014), I present a more nuanced account of the counterfactuals involved here. Classical compatibilism stems from G.E. Moore (1912), and much of what classical compatibilism now consists of are the ten or so amendments one must make to (G.E.) Moore to accommodate the century of criticism that has intervened.
- 14.
Notice that one may have the capacity to do other than he did (in this counterfactual sense of “capacity”) even though his action and the choice behind it were sufficiently caused by factors not under the actor’s control.
- 15.
The brain is the “bottleneck” through which all genetic and environmental causes have their causal influence on mind and behavior (Greene and Cohen 2004).
- 16.
- 17.
It is arguable that the idea that addiction essentially involves a craving that compels is implicit in the first 9 of the 11 symptoms of substance use disorder earlier quoted.
- 18.
I and Heidi Hurd discuss the tracing strategy generally and then as applied to negligence, in Hurd and Moore (2011).
- 19.
The alternative analysis is laid out in Robinson (1985). Sometimes adherence to a tracing strategy is not due to confusing it with the alternative analysis explored in the text. Rather, the tracing strategist applies a kind of forfeiture morality: if someone is doing something they should not be doing in the first place (like shooting up when not yet an addict), then they are responsible for all the effects of that initial wrongdoing no matter how unintended, unforeseen, or unforeseeable those effects might be. Such wrongdoers’ initial wrongdoing is said to “forfeit” our normal concerns to grade their culpability by their actual mental states at the time they act. One sees this crude, forfeiture view on vivid display with the notorious felony-murder rule in Anglo-American criminal law.
- 20.
Huxley’s description to me when I was an undergraduate when Huxley had just returned from experiencing the hallucinogenic effects of LSD (lysergic acid diethylamide) in Mexican mushrooms.
- 21.
Notice that there is nothing in such a rational choice explanation of addictive behaviors that evaluates the addict’s chosen action, choice, and so on, as actually being desirable, morally permissible, or prudentially wise. What I mean by the rational choice explanation of addiction is thus not what economists such as Gary Becker seem to mean when they refer to the rational choice model of addiction (Becker and Murphy 1988; Schwartz 1989). What I mean by rational choice here takes no position on the normative correctness of an addict’s choices and actions—these may well be the best a person in the addict’s situation can get, or they may not. Rather, what is rational in my sense of a rational choice explanation is the way the addict’s character, beliefs, desires, evaluations, choices, actions, and enjoyments line up together. The addict described above is rational because these items for him line up in the way that constitutes practical rationality. No position is taken whether the fully practically rational addict just depicted is actually choosing and doing the right or even the sensible thing. (Of course if one’s ethics is that of a monistic utilitarian—where the only intrinsically good state of affairs is the satisfaction of human preference—that will blur this distinction between objective vs. subjective rationality, because on such an ethics satisfying subjective desire will necessarily also be objectively valuable.)
- 22.
Richard Holton and Kent Berridge call this the “habit account” of addiction (Holton and Berridge 2013, pp. 244–245).
- 23.
“Stickiness” is my nontechnical term for the rational commitments having an intention commits us to (Bratman 1983). Of particular relevance here is the rational commitment to non-reconsideration of the pre-decision desires that incline one in different directions (Yaffe 2010, pp. 148–156). Joseph Raz has long conceptualized such commitments to non-reconsideration, in terms of negative second-order reasons (Raz calls them “exclusionary reasons,” so called because they exclude what were formerly good reasons pro or con some past decisions). Such reasons are reasons not to act for certain reasons (Raz 1975, 1986, ch. 2–4). For several interpretations of Raz’s exclusionary reasons, see Moore (1989).
- 24.
Another aspect of the genesis of these mistaken beliefs of addicts is the motivated nature of the mistakes: addicts make such mistakes because they so want (because of their cravings) such beliefs to be true. Surely the self-deceptive nature to such wishful thinking does not decrease an addict’s responsibility; if a passively experienced mistake does not excuse, why would an actively caused one do so?
- 25.
Or wants most of the time, on diachronic versions such as that of Yaffe (2013).
- 26.
The same point was often made about the supposed “implantation” of evaluative beliefs in cases of brainwashing like that of Patty Hearst. Even if such beliefs were suddenly implanted through no act, choice, or fault of Patty, still, after the passage of enough time in which Patty could integrate such beliefs into her evaluative system one way or the other, she was responsible for acting on such beliefs. Whether Patty had such a fair opportunity to accept or reject such implanted beliefs depended not just on the amount of time but also on whether she was in some fugue-like, disassociated state, making it difficult or impossible for her to compare her implanted beliefs with the contrary beliefs she had long held.
- 27.
Anglo-American criminal law does recognize a limited excuse of weakness of will in duress and provocationdoctrines that individualize the standard of reasonable firmness of will to those defects of will (such as those typically possessed by the young or the grieving) that are not the actor’s fault for possessing. The strength of will judged reasonably firm in such cases is one that can be fairly demanded of persons with such incapacities.
- 28.
My thanks to Douglas Husak, Stephen Morse, and Gideon Yaffe for their comments on this specific chapter and to the same individuals (plus Hedy Kober, Alan Schwartz, and Richard Holton) for their co-teaching or consulting with me on the university-wide seminar on addiction at Yale University Spring Semester, 2017. This chapter is a considerably shortened version of the last chapter of my forthcoming book, Mechanical Choices: The Responsibility of the Human Machine (OUP).
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Moore, M.S. (2019). Addiction and Responsibility. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_2
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